In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-05-00091-CV
______________________________
IN RE:
CONSTRUCTION NETWORK, INC.
Original Mandamus Proceeding
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPI N ION
On July 14, 2005, Construction Network, Inc. (CNI) filed a petition for writ of mandamus in this Court asking us to direct the trial court to order the case to arbitration. See Tex. Gov't Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52.
Mandamus relief is an extraordinary remedy. In re J.D. Edwards World Solutions Co., 87 S.W.3d 546, 549 (Tex. 2002). We will issue a writ of mandamus only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a legally imposed duty, and (2) the absence of a clear and adequate remedy at law. Id.; Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994). It is the relator's burden to show entitlement to the requested relief. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). The relator must establish that the trial court could reasonably have reached only one decision. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding).
CNI contends the trial court abused its discretion in denying CNI's motion to compel arbitration. Based on the record before us, however, we conclude CNI has not demonstrated it is entitled to mandamus relief. See Tex. R. App. P. 52.8(a); Walker, 827 S.W.2d at 839–44.
Accordingly, we deny CNI's petition for writ of mandamus.
Josh R. Morriss, III
Chief Justice
Date Submitted: August 23, 2005
Date Decided: August 24, 2005
M> Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000); Franks v. State, 90 S.W.3d 771, 796 (Tex. App.--Fort Worth 2002, no pet.). Evidence is material if there is a reasonable probability that, had the evidence been disclosed, the outcome of the trial would have been different. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). Under Brady, the defendant bears the burden of showing that, in light of all the evidence, it is reasonably probable the outcome of the trial would have been different had the prosecutor made a timely disclosure. Id. The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense. Id.
We find Chandler has failed to make sufficient showings on the two necessary parts of his Brady claim: that the evidence was favorable and material. Whether unrevealed evidence would have been "favorable" to the accused must be determined by ascertaining whether the evidence "if disclosed and used effectively . . . may make the difference between conviction and acquittal." Ex parte Mitchell, 853 S.W.2d 1, 4 (Tex. Crim. App. 1993) (quoting Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992)). Either exculpatory evidence or impeachment testimony can be favorable. Id. "Exculpatory evidence" is testimony or evidence which "tends to justify, excuse, or clear the defendant from alleged fault or guilt." Thomas, 841 S.W.2d at 404. "Impeachment evidence" is that which is offered "to dispute, disparage, deny, or contradict." Id. The only evidence concerning the video is that it did not clearly depict the confrontation and did not assist in determining what occurred. It cannot be determined from this record that the recording would have been favorable to Chandler.
For the same reason, we find no suggestion the video contained material evidence, that is, that there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim. App. 1997) (quoting Ex parte Kimes, 872 S.W.2d 700, 702 (Tex. Crim. App. 1993)). The standard is that of "a 'reasonable probability' of a different result," so that the issue "is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434 (1995). A "reasonable probability," then, is a probability "sufficient to undermine confidence in the outcome of the trial." Id.; Lagrone, 942 S.W.2d at 615. Since there is no showing that the evidence is favorable to the defendant, it cannot be concluded that the evidence was material--that, if Chandler had known of the video before trial there is a reasonable probability the outcome of the trial would have been different.
B. Failure to Preserve
The failure to preserve potentially useful evidence is not a denial of due process unless a criminal defendant can show bad faith. Arizona v. Youngblood, 488 U.S. 51, 58 (1988); Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008); Thomas, 841 S.W.2d at 402 n.5; Jackson v. State, 50 S.W.3d 579, 589 (Tex. App.--Fort Worth 2001, pet. ref'd); Williams v. State, 906 S.W.2d 58, 61 (Tex. App.--Tyler 1995, pet. ref'd). The Brady duty extends to evidence that is known only to police investigators and not to the prosecutor. The individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. Youngblood v. West Virginia, 547 U.S. 867, 870 (2006). The State's duty to preserve evidence is limited to evidence that possesses an exculpatory value that was apparent before the evidence was destroyed. California v. Trombetta, 467 U.S. 479, 488 (1984). The burden is on Chandler to show that the State acted in bad faith in failing to preserve evidence. McGee v. State, 210 S.W.3d 702, 704 (Tex. App.--Eastland 2006, no pet.).
Three factors which have been deemed relevant in determining whether the loss of evidence violates a defendant's right to due process are: 1) the level of government culpability; 2) the likelihood that the lost evidence was exculpatory; and 3) the likelihood that the defendant was significantly prejudiced at trial by the absence of the evidence. Davis v. State, 831 S.W.2d 426, 442 (Tex. App.--Austin 1992, pet. ref'd). Unless the defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not, in and of itself, result in denial of due process. Id.; see Youngblood, 488 U.S. at 58. The defendant's due process is only implicated "in those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." Youngblood, 488 U.S. at 58; see also Trombetta, 467 U.S. at 486.
Several other Texas appellate courts have considered this issue--the failure to preserve potentially useful video recordings. In each of these cases, the courts have found the facts did not establish evidence of bad faith. Meador v. State, No. 2-07-439-CR, 2008 Tex. App. LEXIS 7906 (Tex. App.--Fort Worth Oct. 16, 2008, no pet.) (mem. op., not designated for publication) (accidentally erased video); Purvis v. State, No. 12-06-00422-CR, 2008 Tex. App. LEXIS 3962 (Tex. App.--Tyler May 30, 2008, no pet.) (mem. op., not designated for publication) (loss of tape result of negligence, not bad faith); Smith v. State, No. 07-05-0289-CR, 2007 Tex. App. LEXIS 5427 (Tex. App.--Amarillo July 11, 2007, no pet.) (mem. op., not designated for publication) (no evidence of bad faith in failing to preserve video recording); McGee, 210 S.W.3d at 705 (video of security tape of robbery at Wal-Mart that showed no faces was not preserved); Salazar v. State, 185 S.W.3d 90 (Tex. App.--San Antonio 2005, no pet.) (video of prison riot not preserved because policy of prison was to tape over in fourteen days); Mahaffey v. State, 937 S.W.2d 51 (Tex. App.--Houston [1st Dist.] 1996 , no pet.) (video erased or did not record, no evidence of bad faith). Here, Still explained the video system was not equipped to download or save the recording to another disk, but it was maintained for sixty days and then discarded. He stated that the recording did not clearly show the defendant and that it was not useful in the investigation. The evidence shows that all such surveillance videos are routinely discarded in sixty days. There is nothing in the record to show bad faith on the part of the State, either by way of the sheriff's office or the State. We therefore overrule this point.
III. State's Closing Argument
Next, Chandler complains of statements made by the State in closing argument. In its closing argument, the prosecutor said,
You should be asking yourself, Well, you know, I didn't hear any evidence in this case about what those men did to him once he got in the cell. (4) Did you hear anything? I didn't hear a thing. And I can guarantee you -- I guarantee you if something happened to Steven Chandler from those eight men (5) in that cell, don't you think you would have heard about it? Don't you think every witness would have been subpoenaed? Don't you think [defense counsel] would be parading them around here? That's why he was scared to go in there because of these eight men.
Chandler complains this amounted to a comment on his failure to testify. However, Chandler posited no objection before the trial court. The failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling his or her objection to a jury argument forfeits the defendant's right to complain about the argument on appeal. Before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he or she will have to show that he or she objected and pursued that objection to an adverse ruling. Tex. R. App. P. 33.1; Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim. App. 2002); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Based on the foregoing, we hold that Chandler forfeited his right to complain about the State's argument.
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: January 29, 2009
Date Decided: January 30, 2009
Publish
1. This case was transferred to this Court from the Tyler Court of Appeals as part of the Texas
Supreme Court's docket equalization program. We are not aware of any conflict between the
precedent of the Tyler Court and the precedent of this Court on any issue relevant in this appeal. See
Tex. R. App. P. 41.3.
2. 373 U.S. 83 (1963).
3. Witnesses put the number of people in the book-in area at anywhere from ten to thirty.
4. One point of dispute in the trial was the reason Chandler refused to go into the holding cell.
Witnesses testified Chandler made statements at the time that he would "whoop" or fight the men
in that cell; defense questioning tried to suggest Chandler was afraid of those men and feared for his
safety.
5. It was not conclusively established how many men were in the holding cell; one witness said
the cell could hold at most eight people.